IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NG 364 of 1995 GENERAL DIVISTON BETWEEN : RAMSET FASTENERS (AUST) PTY LIMITED Appellant AND: ADVANCED BUILDING SYSTEMS PTY LIMITED First Respondent THE BURKE COMPANY LIMITED Second Respondent 29 NOVEMBER, 1996 REASONS FOR JUDGMENT LOCKHART J. This is a motion for a stay of an order for costs made by a Full Court of this Court of which I was a member on 26 April 1996. The orders of the Court allowed the appeal from the judgment of a judge of the Court and, amongst other things, ordered that the respondents to the appeal - one of whom is presently the applicant on the motion before the Court - should pay the costs of the successful appellant of the proceeding at first instance and of a cross appeal. The basis of the motion, which is opposed, is essentially that the moving party, Advanced Building Systems Pty Limited, is in a financial position such that it would not be able to meet the order for costs without placing itself in such jeopardy that it could not prosecute a motion for leave to appeal to the High Court and, in particular, any appeal that f 7¢ tonenceseove may ensue thereafter, if the motion for leave to appeal is successful. The motion is before the High Court and it is likely that it will be heard in February next year. Counsel for the successful party to the appeal opposes the motion on the ground that it has not been established that the financial position of Advanced Building Systems Pty Limited is such that it will necessarily jeopardise its prospects of prosecuting its appeal or indeed the anterior motion for special leave to appeal. The principles are well established and I am content to rely on the exposition of them made by Heerey J. in Henderson v Amadio Pty Limited (1996) 136 ALR 593. Here it is claimed that the points of law involved in the matter are arguable, notwithstanding that the Full Court unanimously reversed the relevant findings of the primary Judge. Also, the financial position of Advanced Building Systems Pty Limited is plainly one where the liabilities exceed its assets. Indeed, as counsel for Ramset has said plainly, for some time Advanced has been funded by loans from related companies in substantial sums. I am not persuaded that the financial position of Advanced is parlous, but it does seem to me on the evidence that as the order for costs, which have been taxed, results in a substantial liability of Advanced to Ramset, it could indeed Place Advanced in a position where it may not be able to meet the order for costs were it enforced in the near future. I think the matter is one that raises a legal question which is plainly open to argument. The just course to follow in accordance with the accepted principles is to grant the motion to stay the costs order until the High Court has determined the special leave application. I do not think it appropriate that I go beyond that. If the High Court allows special leave, it is then a matter that is before the High Court, which can determine the future of any stay motion that may be made to it by Advanced. Of course, if the special leave application fails, then the stay that I will grant automatically will cease to operate. I note also that the leave application seems to be the one which will heard in February of next year. If that position should change, and for some reason the High Court does not determine the matter until some time substantially later, it is always open for Ramset to bring the matter back to the Court. Accordingly, the Court orders that the order for costs made in this matter by a Full Court of this Court on 26 April 1996 be stayed up to and including the date of the determination of the application for special leave from that judgment which has been made to the High Court of Australia. The Court also orders that there be no order as to the costs of this motion. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart. S$ Bala ki Associate 2 Dated: 29 November 1996 Counsel for the Appellant : Mr R C Macaw QC Solicitors for the Appellant =: Davies Ryan de Boos Counsel for the First Respondent : Mr H R Sorensen Solicitors for the First Respondent : Astridge & Murray Date of Hearing : 29 November 1996 Date of Judgment : 29 November 1996